| Neuman v United Servs. Auto. Assn. |
| 2010 NY Slip Op 04974 [74 AD3d 925] |
| June 8, 2010 |
| Appellate Division, Second Department |
| Frederic Neuman et al., Respondents-Appellants, v UnitedServices Automobile Association, Appellant-Respondent. |
—[*1] Havkins Rosenfeld Ritzert & Varriale, LLP, New York, N.Y. (Tara C. Fappino and James E.Neuman of counsel), for respondents-appellants.
In an action, inter alia, to recover damages for breach of an insurance policy, the defendantappeals, as limited by its brief, from so much of an order of the Supreme Court, WestchesterCounty (Scheinkman, J.), entered July 6, 2009, as denied that branch of its motion which was forsummary judgment dismissing so much of the complaint as asserted a claim for losses caused bywater damage, and the plaintiffs cross-appeal, as limited by their brief, from so much of the sameorder as denied that branch of their cross motion which was for summary judgment on the issueof liability with respect to their claim for losses caused by water damage.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendant's motion which was for summary judgment dismissing so much of thecomplaint as asserted a claim for losses caused by water damage, and substituting therefor aprovision granting that branch of the motion; as so modified, the order is affirmed insofar asappealed and cross-appealed from, with one bill of costs payable to the defendant.
The plaintiffs' basement was damaged as a result of water penetration through the exteriorwall in one corner of the basement. According to the plaintiffs' expert, the water originated "fromthe outside," in other words, it was "rain water." The plaintiffs' homeowner's insurance policy,issued by the defendant, contained an exclusion for "loss caused directly or indirectly by. . . water below the surface of the ground, including water which exerts pressureon or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or otherstructure."
In support of its motion for summary judgment, the defendant established that the loss wascaused by rain water that seeped from the soil through the basement wall. Thus, the defendantmade a prima facie showing that an excluded peril was the dominant and proximate cause of thewater damage (see Album Realty Corp. v American Home Assur. Co., 80 NY2d 1008,1010-1011 [1992]; Kannatt v Valley Forge Ins. Co., 228 AD2d 564, 564-565 [1996]).[*2]
In opposition, the plaintiffs failed to raise a triable issueof fact as to whether an excluded peril, i.e., rain water that had soaked into the soil, was thedominant and proximate cause of the water damage to their basement (cf. Novick v UnitedServs. Auto. Assn., 225 AD2d 676, 677 [1996]). "As read by the ordinary and reasonablebusiness person" (Album Realty Corp. v American Home Assur. Co., 80 NY2d at 1010),a loss caused by "water below the surface of the ground" would certainly be found to encompasswater that entered the soil from above, i.e., in the form of rain water, as posited by the plaintiffsin their bill of particulars. The plaintiffs' speculative assertions that the water damage to thebasement could have been caused by any of a number of factors, such as corrosion, entry ofwater through the basement windows, or condensation, were entirely unsupported by theconclusions of their own expert, as well as their admission in their motion papers that the waterentered the basement by seeping through the basement walls. Accordingly, their opposition wasinsufficient to defeat the defendant's motion (see Zuckerman v City of New York, 49NY2d 557, 562 [1980]; Kannatt v Valley Forge Ins. Co., 228 AD2d at 565), and theSupreme Court should have granted the defendant's motion in its entirety.
In light of our determination, we need not address the parties' remaining contentions.Covello, J.P., Dickerson, Eng and Austin, JJ., concur.